17. Employee Status

Martell v. Department of Labor and Economic Growth – 17.29

Martell v. Department of Labor and Economic Growth
Digest No. 17.29

Section 421.43

Cite as: In re the Claim of Marie E Martell, unpublished opinion of the Employment Security Board of Review issued August 4, 2006 (Docket No. B 2004-13571-RMI-l-76079W).

Court: Employment Security Board of Review (now the MCAC)
Appeal pending: No
Claimant: Marie Martell & Joy Witte (These claimants’ cases were joined. The court notes, “[w]hile the two cases were not consolidated, they do arise from similar facts.”)
Employer: State of Michigan, Department of Labor & Economic Growth
Date of decision: August 4, 2006

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HOLDING: The Board of Review determined that two commissioners on the Workers Compensation Appellate Commission were “in employment” for purposes of section 43(o) of the the Act. Accordingly, Claimants were not precluded from eligibility for benefits as section 43(o)(iii)(E) requires of those holding “designated” “major nontenured policymaking or advisory” positions.

FACTS: The former Governor Engler appointed claimants to the Worker’s Compensation Appellate Commission (WCAC) as commission member, effective September 30, 2002. Claimants’ responsibilities including reviewing appeals and related motions on appeal from decisions of the Worker’s Compensation Board of Magistrates and writing corresponding decisions and orders. Claimants became unemployed pursuant to Executive Order 2003-14 and 2003-18, which decreased the number of WCAC commission members from seven to four.

Claimants filed an application for unemployment insurance, but was found not eligible pursuant to section 43(o)(iii)(E) of the MESA, which precludes those holding “designated” “major nontenured policymaking or advisory” positions from UI eligibility.

DECISION: Claimants were not in “designated” “major nontenured policymaking or advisory” positions. Because claimants was not in one of these positions, the ALJ’s decision finding her not eligible for benefits should be reversed.

RATIONALE: The Board of Review’s decision rested on a relatively complex statutory interpretation exercise. It began by recognizing the five prongs section 43(o)(iii)(E) requires for an individual to be found not under the definition of the section’s definition of employment. For the exclusion to apply, the Act requires that the position be: (1) under or pursuant to the laws of the state, (2) designated as a, (3) major, (4) nontenured, and (5) policy making or advisory position.

The Board takes the first two points together to determine if a claimant’s position was “designated.” Looking to a Pennsylvania court’s resolution of a similar issue, the Board reviews the statute that established the WCAC and notes that nowhere in the statute or the legislative history is there indication that WCAC Commission members were to be considered “designated under or pursuant to the [law].” After determining the claimant’s position has not been so designated, the Board recognizes this finding is fatal to the Agency’s position.

Notwithstanding this dispositive finding, the Board reviews the remaining considerations. The Board determines that the term “major” is intended to modify “nontenured policymaking or advisory position.” After an exhaustive delve into the meaning of “nontenured”, the Board determines the term is ambiguous and thus should be construed in favor of the Claimant. Next, the Board determines that because the WCAC Commission members do not have broad policymaking power, their position cannot be considered major, and thus, the Agency loses on this point, too. Because the claimants were not so designated by state law, they were “employees” and eligible for benefits.

Digest author: Travis Miller, Michigan Law, Class of 2018
Digest updated: December 23, 2017